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 888  Capital Holdings Pty Ltd v Cumberland Council [2023] NSWLEC 1552 (21 September 2023)

Last Updated: 21 September 2023

Case Name:	888  Capital Holdings Pty Ltd v Cumberland Council
Medium Neutral Citation:	[2023] NSWLEC 1552
Hearing Date(s):	Conciliation conference on 30 June 2023
Date of Orders:	21 September 2023
Decision Date:	21 September 2023
Jurisdiction:	Class 1
Before:	Sheridan AC
Decision:	The Court orders: (1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans in the sum of $1,400 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of these orders. (2) The appeal is upheld. (3) Development consent is granted to Development Application No. 2022/0647 for the demolition of existing structures, removal of existing trees and the construction of a two-storey centre based childcare facility for 90 children over a basement carpark, subject to the conditions in Annexure A.
Catchwords:	DEVELOPMENT APPLICATION – child care centre – conciliation conference – agreement between the parties – orders
Legislation Cited:	Cumberland Local Environmental Plan 2021, cll 4.3, 4.4, 5.21, 6.2, 6.4, 6.7, 6.9 Education and Care Services National Regulations 2011 Environmental Planning and Assessment Act 1979, ss 8.7, 8.15 Environmental Planning and Assessment Regulation 2021, s 38 Land and Environment Court Act 1979, s 34 State Environmental Planning Policy (Resilience and Hazards) 2021, s 4.6 State Environmental Planning Policy (Transport and Infrastructure) 2021, Ch 3, ss 3.23, 3.26
Texts Cited:	Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021
Category:	Principal judgment
Parties:	888  Capital Holdings Pty Ltd (Applicant) Cumberland Council (Respondent)
Representation:	Counsel: J Reid (Applicant) C McFadzean (Solicitor) (Respondent) Solicitors: Cumberland Council (Respondent)
File Number(s):	2022/392925
Publication Restriction:	No

JUDGMENT

1. COMMISSIONER: These Class 1 proceedings arise as a result of Cumberland Council’s deemed refusal of Development Application No. 2022/0647 (the DA) which seeks consent for the demolition of existing structures and the construction of a centre based childcare facility for 90 children at Lots 39, 40, 41 and 42 in Sec 3, DP 1210, 37-37A Wisdom Street, Guildford West (The Site). These proceedings have been brought pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act).
2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 30 June 2023. I presided over the conciliation conference.
3. At the conciliation conference, the parties reached an in-principle agreement as to the scope of amendments required for the parties to reach terms of a decision in the proceedings that would be acceptable to the parties, subject to time being granted for certain amendments to the development the subject of the Development Application.
4. I granted the parties an adjournment to permit the preparation of amended plans and other documents. I subsequently granted several further adjournments so that those amendments agreed to between the parties could be incorporated into agreed conditions of consent.
5. This agreement between the parties involves the Court upholding the appeal and granting development consent to the DA subject to the agreed conditions of consent.
6. A signed agreement prepared in accordance with s 34(10) of the LEC Act was filed with the Court on 14 July 2023.
7. The parties ask me to approve their decision as set out in the s 34 agreement before the Court. In general terms, the agreement approves the development subject to amended plans that were prepared by the Applicant and noting that the final detail of the works and plans are specified in the agreed conditions of development consent annexed to the s 34 agreement.
8. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings and explained how they have been satisfied. From this I note the following:

(1) Owner’s consent was provided with the Class 1 application.

(2) The Development Application was notified and advertised from 1 December until 15 December 2022. Three written submissions were received during the notification period against the proposal. The parties submit and I concur that all issues raised in submissions by residents have been taken into consideration and satisfactorily addressed.

(3) The Development Application, as amended, before the Court, seeks development consent for a centre based childcare centre. The parties submit and I agree that proposed development is permissible in the R3 Medium Density Residential zone under the Cumberland Local Environmental Plan 2021 (CLEP).

(4) The parties submit and I agree that the Proposed Development is consistent with the objectives of that zone, which provide:

• To provide for the housing needs of the community within a medium density residential environment.

• To provide a variety of housing types within a medium density residential environment.

• To enable other land uses that provide facilities or services to meet the day to day needs of residents.

• To ensure that non-residential land uses are located in a setting that minimises impacts on the amenity of a high density residential environment.

• To encourage residential development that maintains the amenity of the surrounding area.

(5) The parties agree that the Proposed Development with a height of 8.9m complies with cl 4.3 of CLEP as the maximum building height for any building on the Site does not exceed 9 metres.

(6) Clause 4.4 of CLEP provides for a maximum floor space ratio of 0.7:1. The parties submit and I accept that proposed floor space ratio is 0.55:1 which complies with cl 4.4.

(7) Clause 5.21 of CLEP draws upon the Floodplain Development Manual for the definition of a flood planning area. The Manual defines flood planning area to be an area of land below the flood planning level. The flood planning level is further defined to mean the combinations of flood levels (derived from significant flood events or floods of specific annual exceedance probability) and freeboards selected for floodplain risk management purposes. Council’s flood mapping does not identify the site as being less than the flood planning area, subject to a probable maximum flood or as requiring a flood study. On that basis, the parties submit and I agree that development consent is not required under cl 5.21(2).

(8) Development consent is required under cl 6.2 of CLEP for the proposed basement excavation earthworks. The parties submit in relation to cl 6.2(3) criteria:

(a) The development will not disrupt or detrimentally effect drainage patters or soil stability in the locality. An existing easement benefiting 24-24A Robertson Street, Guildford West is being widened.

(b) The excavation is part of the proposed redevelopment of the site and will not of itself stymie the future use or redevelopment.

(c) The quality of soil to be excavated of is de minimis importance and not of determinative weight. The development does not identify proposed fill. Condition No. 70 requires any new fill to be clean. Condition No. 69 requires the disposal of excavated material to an appropriate destination.

(d) Subject to appropriate building techniques, the development will not adversely affect adjoining properties. Additionally, Condition No. 42 requires a dilapidation report of neighbouring properties to assist in the resolution of any claimed damage, should that arise.

(e) The quality of soil to be excavated of is of minimal importance and not of determinative weight. The development does not identify proposed fill. Condition No. 70 requires any new fill to be clean. Condition No. 69 requires the disposal of excavated material to an appropriate destination.

(f) The likelihood of disturbing relics is low. Safeguards are included via Condition No. 62 to suspend work pending the unearthing of relics.

(g) The site is not proximate to a waterway, drinking water catchment of environmentally sensitive area.

(h) The prospect of any adverse impacts on such areas can be managed by conditions, including the provision and maintenance of sediment and erosion control measures.

(9) Clause 6.4 of CLEP requires the consent authority to be satisfied of the availability of various essential services, or that adequate arrangements have been made to make available access to the essential services. The parties agree that adequate services are available or can be made available for water supply, electricity supply, the disposal and management of sewage, stormwater drainage and suitable vehicle access.

(10) In relation to stormwater management considerations at cl 6.7(2), of CLEP the parties agree that:

• the extent of water permeable surfaces are within reasonable expectations, and
• it is not practicable to have or condition on-site stormwater retention for use as an alternative supply to mains water, and
• adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters may be adequately minimised and mitigated by way of conditions of consent, including conditions for the implementation of sediment and erosion control measures.

(11) In relation to cll 6.9(3) and 6.9(4) of CLEP: the site is marked as potentially moderate salinity on the Salinity Map. The parties submit and I concur that:

• the development is not likely to have an adverse impact on salinity processes on the land;
• salinity is not likely to have an impact on the development in any meaningful way;
• the development’s design and siting will avoid any potential significant adverse environmental impact with regard to salinity; and
• in the circumstances, conditions to minimise or mitigate salinity related impacts are not necessary.

(12) State Environmental Planning Policy (Transport and Infrastructure) 2021 (Transport and Infrastructure SEPP) applies to the Site. Chapter 3 - Educational establishments and child care facilities of the Transport and Infrastructure SEPP applies to the proposed development. Section 3.23 of the Transport and Infrastructure SEPP requires a consent authority to consider the Department of Planning, Industry and Environment, Child Care Planning Guideline, 2021 (Child Care Planning Guideline) when determining a development application. The development complies with regulations 107 and 108 of the National Regulations with respect to indoor and outdoor unencumbered space. As such, concurrence from the Secretary of the Department of Education is not required under s 3.22. The parties submit and I am satisfied that the matters for consideration under the Child Care Planning Guideline have been addressed in the Statement of Environmental Effects (SEE) and the proposal (as amended) complies with the non-discretionary standards for centre-based childcare facilities at s 3.26 of the Transport and Infrastructure SEPP. I am also satisfied that the proposal (as amended) complies with the relevant matters under the Child Care Planning Guidelines and the Education and Care Services National Regulations 2011.

(13) Section 4.6 of State Environmental Planning Policy (Resilience and Hazards) 2021 nominates matters that must be considered before a development application is determined. A preliminary site investigation report was lodged with the application. The report concluded that preparation of a remediation action plan was not required but did put forward recommendations going to a hazardous material investigation, a HAZMAT assessment following demolition of a shed, appropriate disposal of waste, importation of clean fill and further investigation of contamination if identified at any stage during the development process. Conditions No. 2, 68, 69 and 70 address such concerns and I am satisfied that the Site is suitable for the proposed use pursuant to the requirements of State Environmental Planning Policy (Resilience and Hazards) 2021.

9 For the above reasons I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act. I am therefore required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

Notes

10. The Court notes that:

(1) The parties have reached an agreement as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions).

(2) The amended plans referred to in Condition 2 of the conditions of consent at Annexure A and were filed with the Court on 18 July 2023.

(3) Cumberland Council, as the relevant consent authority, has agreed pursuant to s 38 of the Environmental Planning and Assessment Regulation 2021 to the applicant amending Development Application No. DA/2022/0647 the subject of these proceedings, to rely on the amended plans specified in Annexure A.

Conclusion

11. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.
12. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

Orders

13. The Court orders:

(1) The Applicant is to pay the Respondent’s costs thrown away as a result of the amended plans in the sum of $1,400 pursuant to s 8.15(3) of the Environmental Planning and Assessment Act 1979 within 28 days of the date of these orders.

(2) The appeal is upheld.

(3) Development consent is granted to Development Application No. 2022/0647 for the demolition of existing structures, removal of existing trees and the construction of a two-storey centre based childcare facility for 90 children over a basement carpark, subject to the conditions in Annexure A to these orders.

............................

L Sheridan

Acting Commissioner of the Court

Annexure A (341405, pdf)

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